A Life without Choice , let alone, ‘Independence’

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The Law on Capacity

The Mental Capacity Act 2005, purported to empower.

The Act, presumes, everyone,  is capable of making a particular decision, until, there is evidence, on the balance of probabilities, by a prescribed assessment,  that, they are not.

As a capacity assessment,  removes a person’s fundamental freedom to  choose.

It should only be undertaken, if ‘incapacity’ is suspected.

And, must only be  of  a person’s ability, to  make a specific decision, at the time that decision needs to be made,  in his best interest.

This assessment,  or, suspicion of incapacity, must not be based, on a person’s mental condition and/or presentation.

Further, the Act’s overarching principle provides;

A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success’

S1(3), and, see also s3(2) MCA.

This requires, as much as possible , to be done,  to maximise a person’s capacity to make the particular decision.

And, to avoid Article 12 EU illegality, ‘substitute decision making’, a joint decision, should be attempted before capacity is assessed.

Assessments, should take place, in a familiar place, and, be by a familiar person.

With the assesse, in optimum physical, and emotional health.

Unless in an emergency situation.

An assessment , can only, relate to a person’s capacity, at any particular time.

Capacity to make, a decision, can be regained.

The Mental Capacity Act, is the only Act, as far as I am aware, that allows, the state, to remove a person’s autonomy.

Prior to 2007, the High Court had such power, but, only if, necessary, in a person’s best interest, and, it was used, exceptionally.

Decisions of the autistic, and vulnerable, were generally made by them, with the help, and, protection of their family.

The Reality Since 2007

As early as year 9, parents, will be introduced to a person from ‘Transitions’, at their child’s SEN review.

This person’s function, will not be explained, other than,  autistics/ learning disabled,  find ‘transition’ to adulthood difficult, and, they are there to help.

At 16, your child’s full time school, is no longer funded.

Despite SEN ‘Education’ funding continuing until 25.

Instead, independent living, and employability skills are taught, and, a base building provided.

Most children attending a special school, will automatically, be deemed ‘incapable’, of making  decisions, as to their welfare,  and, finances, by social workers, and GPs  .

As these assessments, are neither time, nor decision specific, and, usually based on their  conditions of autism, and/ or, presentation,  they are illegal.

Even if, a formal capacity test, is undertaken, it appears, it need not be completed, as required by the Act, as the standard Local Authority Assessment Form provides;

The assessment should end if the person is unable to progress through the functional test. For example if a person cannot understand the decision they will not be able to retain it, weigh it in the balance or meaningfully communicate a decision’.

https://finolamoss.wordpress.com/2015/03/03/standard-capacity-assessments-stephen-hawking-would-fail-without-his-box/

All that needs to happen, is a person be asked ,  do  you know why, you need your medication, or, do you know why you need to pay your disability allowance into your own bank account.

And, show no understanding, and, their reaction noted.

So, effectively, once a person has, an’ impairment of mind’, which the Act makes non- exhaustive, and extensive,Unless, they are a good communicators, with knowledge of modern procedures, and medicines, they are doomed.

It must also be considered, how many non- SEN teenagers, would be able to answer  such questions.

As this standard LA test, is neither time, nor decision  specific, needed, and, can only, if abandoned so early, be based on a person’s condition, and/or presentation, it  is illegal under the Act.

Protection of your child’s ‘rights’,will be tick boxed, by the appointment of his own Independent Mental Capacity Advocate.

Whose only function, is to  explain what is happening to him, and his rights.

Quite what these rights are, is unknown, as the incapable, do not appear to have any under the Act, other than, to consultation.

And, your child’s ‘Advocate’, despite his name, cannot take part, in the decision making process.

At 17, you will be consulted about your child’s, away from home for life placement, but, at 18, it is ‘inappropriate’ for you to make decisions for him, and, you have no right to do so.

https://finolamoss.wordpress.com/2015/07/07/autistic-parents-have-no-rights-and-the-private-corporate-parent-is-unaccountable/

As your child, lacks the capacity, to make his own  decisions, adult social services, will  make them, and, decide what placement is, in his ‘ best interests ‘.

If  you object, to your child living ‘independently’, or, are unhappy with the chosen placement, the LA will make an application to the Court of Protection,  as your child is ‘incapable’ of choosing where he lives.

If you insist he is capable, and wants to live at home,  the court, will declare, your child ‘incapable’ of all decisions, past, present and future,  and, that it is, in his  best interests, to live in whatever placement, the LA provide.

All his future decisions, will then be dictated by his Care Plan.

Even down to how many baths he has, when he takes them, and, how he is cleaned.

Subject to reviews, this will be, for the rest of his life.

This is his ‘independence’, and, empowerment.

The need for a Deprivation of Liberty Order each time a person is locked in his room or supported living facility is not required by the MCA.

So, despite the Magna Carta, Human Rights Act, Equality Act, Disability Discrimination Act and United Nations Convention, millions, now, and in the future, will be encaged without due process.

A Horrifying Abuse Scandal

And, Supported/independent living, is now, the only policy, and support provided by Social Services.

The House of Lords Select Committee on Mental Capacity Act 05  report

Extract from Hansard on no monitoring of substitute decision making by care provision.

98.  There were also concerns that a decision-maker could assume too much power, and sometimes on the basis of questionable legal authority.

Sheffield Safeguarding Adults Board pointed out that

once a person has been deemed to lack capacity to make a decision they become vulnerable to the opinion of the decision-maker and when those decisions are not reflective of their best interests it often leaves them powerless to challenge“.[157]

This was echoed by other witnesses, who expressed concern over the use of the ‘general defence’—the term often used to describe sections 5 and 6 of the Act (Acts in connection with care or treatment and Section 5 Acts: limitations)—which provides protection from liability for carers and others to carry out acts in relation to a person who lacks capacity.

The pre-legislative scrutiny committee foresaw problems with these sections, which were at the time entitled ‘the general authority’.

They worried that it would wrongly give the “impression that the general authority would be assumed by a single individual who would then take all decisions on behalf of an incapacitated individual”.[158]

In response, the Government removed the term ‘general authority’ from the Bill, but concerns have persisted since implementation.

Professor Phil Fennell and Dr Lucy Series described the general defence as providing “tremendous discretionary power” which was “not subject to any routine monitoring”.[159]

Liberty expressed concern about the very wide range of decisions which could be made under these sections, combined with a “worrying lack of oversight”.

And these decisions, are being made on a business efficiency model, in secret, by large private monopoly care/ supported living provision, with no oversight by the courts, only the Adult Services Managers,  employed by the LA, who commissioned the service, and, would therefore, be liable for its inadequacy, so a huge conflict of interests.http://ukhumanrightsblog.com/2011/11/17/severely-disabled-mans-care-plan-is-not-a-deprivation-of-liberty-says-court-of-appeal/

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Harvesting of the Disabled for Profit

A2013-09-20-15_36_14Parents of special educational needs children including those labelled autistic be warned this may be your fate.

The state are creating and labelling children as having a learning disability rather than a difficulty.

The renamed label is intellectual disability

See the latest number here.

http://schoolsweek.co.uk/schools-struggle-as-autism-diagnoses-rise-25-per-cent/

There are several databases used to share information illegally under Data Protection Act and s8 HRA to harvest children including future criminals.

http://databasemasterclass.blogspot.co.uk/

A learning (intellectual) ‘disability‘ is an impairment of mind, permanent, innate and evidenced by a low IQ  and is now  on the rise in the UK look at the statistics

http://chrishatton.blogspot.co.uk/2015/11/the-disappeared.html?spref=tw.

Whereas a learning ‘difficulty‘ is not inate, and  can be because  a child is autistic ( learns differently), a late developer,  has poor teaching/assessment or taught in a second language,  such a child will have at least an average IQ. .

So if your child is a late developer autistic, has inadequate teaching he labelled and doomed to be a cash cow for life.

Unless he is part of the labelling state cabal.

Or in private education as they do not have the EHC system.

Education, Health, and Care Statements replaced Special Educational Needs statements last year.

Education, Health and Care statements unlike SEN, require social services to monitor your child’s ‘welfare’.

A school protection officer/ social worker will now be part of your life.

And,  your  child’s name secretly notified to  MASH- Multi Agency, Safeguarding Hub

Invasive IT Databases are being provided by CAPITA at 2016 see link.

In breach of HRA and Data Protection, to target families at risk in schools without their permission or even knowledge.

http://www.capita-one.co.uk/files/one/attachments/capita_one_-_product_brochure_-_one_analytics_-_apr16.pdf

https://www.gov.uk/government/news/working-together-to-safeguard-children-multi-agency-safeguarding-hubs

Your child will be in this system and by it watched covertly by every  agent of the state.

Read here the law and databases used to target the ‘disabled’ and their families by all agents of the state.

http://databasemasterclass.blogspot.co.uk/

And, despite the inherent difficulties of coping with an autistic./ different child.

Any bruise, scratch, dirt, swear  word, behaviour issue, sexualised behaviour, weight loss/gain,  head lice, old /inappropriate/clothing, emotional problem, parents relationship, lateness, rearrangement of meeting, attitude,comments, will be noted.

But you will be unaware you are under their microscope.

And have no right of reply or correction of their databases.

You will be impressed everyone  is taking such an interest.

Ignorant of why, your child really is, so ‘special’.

In June 2016 the government announced millions would be given to provide early intervention before crisis point.

This means those merely ‘at risk’ will also be targeted ie the poor, or those with relatives with special needs.

Education ‘pathways‘ are  used to harvest as many as possible to private eventually venture capital education and care .

As it is highly profitable- £200,000 a year financed by NHS (health), LA ( social),  D of E ( education )

.http://www.manchestereveningnews.co.uk/business/acorn-care-acquires-pathway-care-9102370

All areas have similar Pathways as shown here for Nottingham

http://www.nottinghamshire.gov.uk/DMS/Document.ashx?czJKcaeAi5tUFL1DTL2UE4zNRBcoShgo=bSSB5VpG8vooSzX00hg%2FyPEcYUVxHpzqPrPXMJfEF%2BxGVODFeCYDfw%3D%3D&rUzwRPf%2BZ3zd4E7Ikn8Lyw%3D%3D=pwRE6AGJFLDNlh225F5QMaQWCtPHwdhUfCZ%2FLUQzgA2uL5jNRG4jdQ%3D%3D&mCTIbCubSFfXsDGW9IXnlg%3D%3D=hFflUdN3100%3D&kCx1AnS9%2FpWZQ40DXFvdEw%3D%3D=hFflUdN3100%3D&uJovDxwdjMPoYv%2BAJvYtyA%3D%3D=ctNJFf55vVA%3D&FgPlIEJYlotS%2BYGoBi5olA%3D%3D=NHdURQburHA%3D&d9Qjj0ag1Pd993jsyOJqFvmyB7X0CSQK=ctNJFf55vVA%3D&WGewmoAfeNR9xqBux0r1Q8Za60lavYmz=ctNJFf55vVA%3D&WGewmoAfeNQ16B2MHuCpMRKZMwaG1PaO=ctNJFf55vVA%3D

This intelligence gathering can be used to enforce any medication, therapy, schooling, or silence your complaints, via care proceeding or threat of them.

And serves as a file of historic ‘concerns’ of parental abuse/neglect/capacity, and/or future, Court of Protection LA evidence, that it is in your 18+ child’s ‘best interests’ to  be removed to community living for life, and your access limited and/or excluded.

Under EHC statements, your child can no longer attend a day school at 16, nor use overnight respite facilities.

His education, continues, by ad hoc, unaccountable, ‘independent’ living skills education packages

https://finolamoss.wordpress.com/2014/11/25/education-health-and-care-statements-emperors-clothes/

Consisting of agency workers,  escorting him to ad hoc skills facilities, overseen by a package boss.

Who, unknown to you are briefed on ‘your family’s file’ and will continue to monitor your child’s ‘welfare’.

Their goal,  is ‘independent’, away from home living and  is likely, to result, in a cash bonus, or, at least, more lucrative education packages from the LA.

‘Education’ will discuss leaving Mummy and Daddy, with your child.

Regardless of the effect or yours or his wishes.

And, you may not be told.

At 18, all services are funded by Adult Services.

Due to government cuts, these services are limited to assessment for state residential care for life- independent/ supported/community living,

A new private industry being bought up by monopoly venture capital US companies like Cygnet who own CAMBIAN with over 160 home sites.

http://www.local.gov.uk/documents/10180/5854661/Adult+social+care+funding+2014+state+of+the+nation+report/e32866fa-d512-4e77-9961-8861d2d93238.

This states,

‘The MODEL OF CARE, is increasingly one, which promotes INDEPENDENCE, and MANAGERS RISK.’ ( Code for ‘community’/supported living). 

Pressure, will be placed on the LA, to transfer adult funding to central government funding, which is only available, for residential Provision.

https://finolamoss.wordpress.com/2015/04/27/independent-living-disabled-penned-for-profit/

The LA’s standard  adult support plan criteria eludes to this in a question the Adult Social Worker must complete;

Does the plan promote independence including identifying goals that could result in reducing paid support within an agreed period ?

Your child because of his learning difficulty will be treated as a ‘child in need’ under s17 Childrens  Act.

Children in need meetings will be held  with the education package, and, safeguarding issues  raised,- hygiene, clothing, food, parenting, medical and dental attendance, physical, sexual emotional  abuse,  and, placed in social services core assessments.

As, the LA funding can only decide, it is in your child’s ‘best interests’, to live away from you, and, your access limited, little in your favour, will be recorded.

No matter, how unfairly skewed against you, even if factually incorrect, it appears impossible, to change these assessments, and, relay  the correct information to professionals, and agencies.

The difficultly posed by your child’s disability, or, the inadequacy of support will not be considered.

The LA commission the services, and, it is liable, if inadequate.

Your ability to safeguard, parent, clean your home, and not neglect your child, will be judged, as if your child, were not disabled.

And, any possible concerns, re cleanliness/safeguarding/emotional abuse, real, or contrived,

Will be reported back, by support workers.

Whilst, your child’s disability, will not be considered, in assessing your parental capacity.

It will be, grossly exaggerated, by the LA in  their assessments of him,

To enable the maximum to be claimed from public funds to be paid to private  independent/community living providers.

The worse your child’s behave becomes or is made to appear, the greater the income  the independent/supported living provider  can claim.

This also is used as evidence you are unable to cope, and it is  in his ‘best interests’ he to be removed.

If you do get support, it will not be charged to help you, other than engage with your child.

But, support will be charged, to assess your capability, as a parent, and, whether you have a safe, clean, adequate home environment.

But you again, will be unaware of this. https://finolamoss.wordpress.com/2014/10/14/gathering-evidence-from-social-https://finolamoss.wordpress.com/2014/10/14/gathering-evidence-from-social-care/

Regular meeting s behind your back, will be held, between the social services, education, and, agency worker provider, who  have ‘your file’.

Your family, and child, will be whatever, they, in secret, decide.

Any information, you provide to workers/professionals, about your child, that does not fit the cabal’s purpose, of abuse, and neglect, safeguarding concerns will be ignored.

Support workers, on zero hour, minimum wage contracts, will be briefed, on the questions, to ask, and, matters to look out for.

https://finolamoss.wordpress.com/2015/02/10/i-smell-a-rat/

Your family GP, will also  be part of the canal, and, despite confidentiality restrictions, both, your child’s medical records, and yours, will be shared.

Anything, that points to present or future parental physical, or mental incapacity, will be used to show, it is in your child’s ‘best interests’, to be removed to ‘independent’ living.

Any existent, or non-existent health, or mental concerns will be notified to your GP, by education, or, any agency, or social worker. https://finolamoss.wordpress.com/2014/08/24/my-complaint-and-unaccountable-services/

To possibly gain support, as a carer, or, any respite, cleaning   etc, you will have to undergo a Carer’s assessment.

This is used to probe, every aspect of your physical and mental ‘wellbeing’.

But, the LA are not under a duty, to provide support, and, have no funds to do so.

And, will only consider it, if the affect on a carer’s wellbeing, is ‘severe’, which would then make a carer, unfit, and/or a risk to their chargee. https://finolamoss.wordpress.com/2014/11/20/carers-act-2014-care-to-ensnare/

‘Concerns’, from support/education workers, are relayed to social services.

And sought expressly, by leading questioning.

And covertly, by tricks and grooming.

You will consider them all your friends, until without notice they disappear.

They will not raise their concerns with you.

https://finolamoss.wordpress.com/2015/01/31/education-report-a-red-mark-the-size-of-a-fist/

These ‘concerns’, will be placed in court statements,to prevent you representing your child in court as you are cast as abuser/neglector there is a conflict of interests between you and your child.,

And, show, it is in his ‘best interests’, to be removed from you and your contact limited.

You will only discover, their ‘concerns’, on reading your social worker’s  court statement, in support of s48 Mental Capacity Act Interim application to the Court of Protection.

Your child will be forced, if necessary, by a court order, to undergo a psychological assessment, paid for by the LA.

This will assess, any deemed emotional abuse your child is subjected to at home, and a blanket, illegal capacity test.

https://finolamoss.wordpress.com/2015/03/03/standard-capacity-assessments-stephen-hawking-would-fail-without-his-box/

This will state, that due to your child’s ‘intellectual disability’, he is, and has always been, unable to make any decisions.

It is now assumed that children subject to a SEN now EHC statement will be incapable under MCA and conferences for SEN families give presentations to that effect on Transition ie 16-18, see here

https://www.ambitiousaboutautism.org.uk/sites/default/files/Transition%20seminar%20FINAL%20(2).pdf

Your child has now been made, the perfect commodity for life, for the multibillion pound, unaccountable, independent living industry.

https://finolamoss.wordpress.com/2015/05/31/the-mental-capacity-act-in-practice-emancipated-or-insentient/

Where he is safely behind the closed doors of the state where abuse  or even death is not investigated.

Your GP, will  look for signs of neglect, weight loss, bed sores, skin conditions, abuse, and self -harm.

https://finolamoss.wordpress.com/2014/09/25/a-voice-crying-in-the-wilderness/

If you proffer other causes, this may be evidence of fabricated disorder/ Munchausen.

Your GP, will be instructed by the Court of Protection, to do a  physical examination of your child, under s49 MCA, whether necessary, or not, and, any other assessments.

And, regardless of the distress, it causes.

His letter of instruction, will state, that the LA have concerns, and, that you have denied access, to your child, weather proved, or not.

Once the Court, becomes involved, any support workers, will become overt assessors.

All care agencies, and day centres, are funded by the LA, and therefore, controlled by them.

And as, ‘independent’ away from home living, is now the LA’s, only policy, for adult social care, all feed into it.

Despite, his EU, United Nations Rights not, to have the state remove his right to make decisions,http://www.un.org/disabilities/default.asp?id=279

Here is an OFSTED report in 2016 showing the shambles SEN is in there.

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/575666/Joint_local_area_SEND_inspection_in_Surrey.pdf

You, and your child are flies in a sealed LA web.

The government’s Transforming Care document proposes early intervention for the autistic and learning disabled who evidence ‘challenging behaviour  and contains the following statistics;.

There are an estimated 1.2 million people in England, of which 286,000 are children and young people under the age of 18, with a learning disability (Emerson et al. 2012).

This means that roughly 20 people in every thousand have a learning disability (2-3% of the general population). The majority live their lives without support from specialist learning disability services – for instance, of the roughly 1 million adults with a learning disability, it is estimated that 189,000 (21%) (Emerson et al. 2012) are known to learning disability services.

There are an estimated 700,000 people with autism in England (Brugha et al. 2012) of which 125,000 are children and young people under the age of 18 (Baird et al. 2006).

This means that roughly 11 people in every thousand have autism (1.1% of the general population). It is estimated that 44%-52% of people with autism also have a learning disability (Emerson et al. 2010).

Those who display behaviour that challenges Challenging behaviours are generally understood to be exhibited by 10-15% of adults with learning disabilities known to services (approx. 22-34,000 people), whilst often peaking between the ages of 20-49 (Emerson et al. 2001).

A further 40,000 of children under the age of 18 are believed to display challenging behaviour (Emerson et al 2014).

As set out in Challenging Behaviour: A Unified Approach (Royal College of Psychiatrists, et al, 2007, p.14) challenging behaviour is behaviour

of such an intensity, frequency or duration as to threaten the quality of life and/or the physical safety of the individual or others and is likely to lead to responses that are restrictive, aversive or result in exclusion”.

 

Determined to harvest your child.spider-net-g8i1

The Mental Capacity Act in practice -emancipated or insentient?

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8 years ago, the Mental Capacity Act was, supposedly implemented to provide a  ’ legal’ framework, to empower, and emancipate,   the incapables’ ‘decision making’.

But has it?

No. See House of Lords Select Committee report.

The Local Authority strategy, to remove all suspected ‘incapables’ to private for profit state care, increased rapidly, after 2007.

Studies show, these removals   were at first,  often illegal, without reference to the Court  of Protection. http://www.communitycare.co.uk/2012/10/30/where-social-workers-are-going-wrong-on-the-mental-capacity-act/

Whereas, now the Court rubber stamps  removal.

As analysed in previous posts, it is functionally, very difficult, to legally comply with s1 of the Act, and, empower the vulnerable.

And this has not happened, as the Act is being used to remove all decisions from the vulnerable and their parents.

From this, we can only  conclude, the real reason for the Act,  was to enforce  private profit institutional  ‘care’ for life away from family and effectively any real community.

Such care, would have huge benefits, for  the government, and LAs.

The LA, gets the old, disabled, and vulnerable off their books, eradicating the need for adult care.

Social workers, are used as enforcers, and then, replaced by care managers, who merely oversee private provision they have commissioned and would be liable for if inadequate.

LA budgets, do not then, have to be used on continuing   home support.

Private profit care, benefits the government,   as,  public money,  available, to the disabled and their families, under the Chronically Sick and Disabled Act 1970, can instead be used by venture capitalists, and businesses, to make profit, from social care,  fuelling  economic growth.

LA budget cuts, purporting to reduce the UK deficit, actually increase it, by payment of huge sums to private care providers .

The market for such care, is  ever extended, now to those which learning disabilities, and behavioural problems, to maximise the potential consumer base.

Capacity/ability to make a decision is assessed routinely, and covertly.

The Care Act 2014, implemented last month, dilutes ‘capacity’, to ’substantial difficulty’ in being involved in decisions.

As   assessments   are   routine, they are  based on age, or label, and  therefore MCA illegal, but who, or, how, could anyone complain?

This approach is highly discriminatory, and, marginalises, and stigmatises   certain groups of people, by questioning their ‘decisions’, and, removing their right to make them.

The state can then enforce any care, and medication, they want.

For those living in residential care, rather than for emancipation, the MCA  is being used, to justify tick- boxed regulation, and unchecked, perfunctory at best, standards of ‘care’, and, defend practioners.

The Supreme Court   decision Cheshire West   [2014] UKSC 19, graphically illustrated, how functionally unworkable the   MCA is, in relation to the many deprivation of liberties, that take place daily, in private care.

And caused   a bureaucratic nightmare, which will do nothing to empower the vulnerable, but simply increases the box ticking of already overburdened, understaffed, underpaid care workers.

It has been translated operationally, to a Review of the Care Provision annually of the Deprivation of Liberty Safeguards with a Relevant Registered Person, who is generally not a family member but similar to an IMCA trained and appointed by a charity, but paid for by the state and the Adult Services. Most Care Providers have computer software to deal with the matter as part of their ‘best interests’ check list.

As,   with deprivation of liberties, any attempt to actually apply the Act, to the myriad of individual daily decisions, in residential care, as is required by the Act, would also be functionally impossible, particularly, in our, all for profit, zero hour care factories.

Usefully, the court practice is to remove a person’s capacity to make all future decisions, despite this being illegal under the MCA.

This assessment, to add weight to it will often be by a psychologist, pursuant to section 48 MCA.

But can be anyone.

And a s48 MCA application is granted to the LA on merely showing they suspect a person incapable.

The standard assessment order will decide, if a person has the capacity to litigate, make decisions as to where he lives, the care he receives, and the contact he has with members of his family

These are not decision specific,   and, other than for LA funding, often, need not be made, so  illegal under the MCA.

As mentioned in the post, ‘Standard Capacity Assessments Stephen Hawing would fail’, the standard LA assessment, is also apparently illegal.

And, does nothing to maximise capacity, other than tick a box on ease, comfort of circumstances, and, appears not to   encourage joint decision making.

We have no figures of how many, if any, pass the capacity test.

If an assessor, were to find a person   capable, he is proving his pay master LA, who suspected incapacity, and, applied to court, wrong.

The standard Record of Assessment,   will also certify, that a person, is unlikely to regain capacity, condemning him, to never, being allowed to make a decision again.

Providing  care providers, with a blanket incapacity assessment for all future decisions, again illegal.

Worse still, capacity, appears to be being equated with sentience.

As shown in Cheshire West judgement.

Where the court of appeal, and minority of the Supreme Court, held that a person can only be deprived of his liberty, if he has the capacity to understand and object to his situation, ie be aware of it.

Even Lady Hale eluded to ‘incapacity’, being equal to unawareness, by her words

An unconscious or sleeping person may not know that he has been locked in a cell, but he has still been deprived of his liberty.

A mentally disordered person who has been kept in a cupboard under the stairs (a not uncommon occurrence in days gone by) may not appreciate that there is any alternative way to live, but he has still been deprived of his liberty’.

Care workers are encouraged to believe, these very vulnerable scared lonely people with communication issues are actually incapable of any awareness or feeling.

As a support worker, horrifyingly  remarked to me ,

‘Would Issy know what was happening, if 5 strangers removed her from home ?’

The state is now allowed by the subversion  of the MCA, to create  the perfect commodities.

And,  the perfect   victims.insentient

 

The Mental Capacity Test- The Fool of Law ?

Rule of Law is the basis of our freedom and democracy.

It is our protection from state exploitation and tyranny.

It provides our laws must be certain.

Our main and most authoritative source of law is an Act of Parliament.

Parliament must therefore ensure Acts are certain.

That means sufficiently well drafted to be implemented without the need for too much discretion and/or subjectivity on behalf of the executive and/or the judiciary.

If  not the state will be given too much unauthorised ( not sanctioned by Parliament), unpredictable power over an individual.

An Act historically commenced with a paragraph describing its ‘sprit and intendment’, known as a Preamble.

The Preamble’s function  was to explain the purpose of an Act to assist interpretation and application.

Preambles are now rare as thought historic and superfluous .

But The Mental Capacity Act commences with 5 overarching principles in the style of a Preamble but drafted as section 1.

Worse still this section is the main substance of the Act and its overriding principle the agreed by Parliament giving of autonomy to an individual so that decisions he was capable of making were not made for him but it is written in the style of a preamble.

And then the Act dangerously in breach of the rule of law gives no  further specific provisions enacting the main purpose of the Act in s1 principles.

But instead places complete reliance on a lengthy  Code of Practice.

This is poor drafting as it leaves the Act vague and therefore ripe for executive bureaucratic discretion and gives too much unfetted power over the individual.

From a general s.1 embedding autonomy and making a capacity assessment a last resort.

The Act  says no more on these crucial matters other than in the Code of Conduct.

Leaving the purpose of the Act and how it should be implemented to a Code of Conduct.

The  effect of this  is, there no law to  implement the purposes Act in s1.

Instead, s 2 and 3, move straight to define what a person has to prove, to avoid having their ‘capacity’ removed.

By anyone’s standards, a strange way to draft an Act promoting autonomy.

Section 2, is stage one of the capacity assessment.

‘Capacity’ is rather unhelpfully defined, in the Code of Conduct,

as ‘the ability to make a decision’.

Stage one of the capacity test, consists of a finding, that a person has,

an impairment of, or disturbance in, the functioning of the mind, or brain’.

And gives a non-exhaustive, expansive list of examples. mental illness, learning disabled, now 375, including intoxication by alcohol and effect of medication.

But avoids any  definitions/explanations, of these listed classes.

Or the blood sugar, intoxication levels needed to impair or disturb, or indeed, any definition of impairment, or disturbance, or the degree needed to satisfy the test.

This level of vagueness, expansiveness and inherent subjectivity, can only be deliberate..

And, one wonders how anyone, could manage, not to fail  stage one.

Is there any evidence, that anyone has ever passed it?

This means section 3, stage two will almost always be automatically moved on to.

This undefined impairment/disturbance, must be sufficient, to cause the person to be unable to make a particular decision, at the relevant time, when it is needed.

A person is unable to make a decision and therefore, ‘incapable’ if he fails any one of the following;

Firstly, if found that he,

cannot understand information given’.

‘Information given’ is ‘defined’ in the Code of Practice,

‘as information relating to the nature of the decision’.

This leaves the assessor and us to speculate, as to what this ‘information’ might be, and how it is to be imparted to the person who is already suspected of being mentally ‘incapable’.

Consider, for example, the information, that needs to be given to  the suspected ‘incapable’, to make the usual decisions, required in a standard court capacity order;

Which consists of, whether they want to represent themselves in the Court of Protection, where they want to reside, who they want to see, and, whether, they can decide all their own personal welfare decisions.

This  involves the need to impart, a potentially limitless amount of information to the person being assessed capable of making them.

And not only does the assessor need to impart all this information,

S3 (2)   also requires him, to present this information,

in the best way to maximise a person’s capacity’.

So, all this must warrant a vague, impossible, Herculean feat.

But it gets even worse, the poor assessor, is then given, the  even more difficult/impossible task of judging if, a person has  understood all this information.

How can an assessor possibly to this ?

How can he possibly  judge what another person has understood ?

Particularly, if that person has communication difficulties.

If a person says yes, I understand, what it means to act for myself in the court of protection.

Unlikely per se, even if he had already experienced it, and assuming, he had been provided with all the information, relating to the decision, whatever that might be.

Yes, I know all that is involved in looking after my personal welfare, and, have considered, all the information relating to all these decisions, another imponderable.

Will this be sufficient, for an assessor, to be satisfied, a person has indeed, understood, the infinite nuances of such information?

Remember, the assessor, is not allowed by the Act, to make judgements, solely on a person’s behaviour or presentation.

If a person, passes that part of  the test.

How can only be imagined.

The assessor must then decide, that the person is able, to retain, all this mass of information,

long enough to be able to make a decision’.

The Act, does not  stipulate for how long, nor why, this  is specifically made necessary.

As presumably, a person normally indicates his decision, as soon, as he has understood the information, in answer to the question, that requires that decision.

And presumably, the ability to understand this question, by necessity, would need the retention of this information for the required time.

But not only is the assessor charged with assessing the length of ‘memory’ required.

The assessor has to then go on to decide if a person’s   ability,

to use and weigh up the information in making the decision’, is sufficient.

Wow.

This will involve the assessor having the skills, and information, even experts, in the plethora of areas, involved in the decisions, might not possess.

Inter alia, statistics on success of litigants in person, caring for yourself, over being cared for by the state, the psychological effects of seeing certain people, or not, the advantages of a particular residence now, and, in the future.

And, how can an assessor, possibly judge what should be ‘evaluated’, in such decisions.

The assessor himself is unlikely to be able to. Who would?

And, more crucially, whether  the  person with communication difficulties, has ‘evaluated’ them properly?

On what objective criteria, will an assessor’s judgement be based, and, what is to be evaluated?

Such an evaluation, would require an objective evaluation of a sea of information, and unknown future imponderables, and expert knowledge.

But, even more crucially, such evaluation, relies on, and requires, that the person being assessed, has extremely good communication skills, to be able to impart to the assessor, how he evaluated his decision.

How could a person, suspected of mental incapacity, with normally very poor, if any, communication skills, be expected, to explain his evaluation of all this required information?

This must therefore, on analysis, be found to be a farcical, unworkable assessment.

And, grossly unfair on the assessee.

Particularly as in law he is only forced to be assessed because of his disability.

Yet, such assessments, have already removed the autonomy of over a million, with a potential for millions more, for life.

Assessments, that do not even satisfy superficial scrutiny, are removing, our citizens rights to make their own decisions.

Worse still, the Care Act 2014, now weakens the definition of ‘capacity’, to having ‘substantial difficulty’ being involved in specific decisions.

And, this ‘substantial difficulty’ test is the same as the ‘capacity test’ definition in the MCA.

So anyone can assess, and the ‘assessment’, is effectively totally subjective/unworkable.

Terrifying confirmation, that the state is determined, to remove the autonomy of anyone they want to.

Two Acts, provide and dilute, the ultimate weapon of control, and, create a  means to use anyone, as a commodity for private profit.

Has anyone ever passed such a capacity/ ‘substantial difficulty’ test?

It-Is-Not-Torture-Small

No one survives a  MCA capacity test

 

Law on Capacity, ‘To Assess or not to assess, that is the question’.

Royal-Mail-Stamps-RSC-HamletThe Mental Capacity Act was, supposedly, passed to empower  the vulnerable, to make their own decisions.

A ‘capacity’ assessment , must therefore,  be a measure of   last resort , as it removes a person’s autonomy in respect to a particular decision.

And, in any event, should only be  undertaken, as and when a decision, ‘needs to be made’.

This is the law as provided by the Act which states

A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success

If a person can with help, make a specific decision,he will not be incapable of making it.

And a capacity assessment and removal of that decision from him will be illegal.

The Act also provides that prior to an assessment everything  practicable  must be done to enable a person to make the decision himself.

This requires, that the person proposing to assess, knows as much about the assessee as possible, to know how  a person’s capacity can be maximised.

So basic capacity facilitators, such as the assessee’s ease, a familiar environment, no illness, or distress ,should be ensured and the assessor should  not be a stranger.

And, the decision if possible, be made jointly with the suspected incapable, before the dynamic is changed, by a formal capacity assessment, which by its nature removes the incapable from the decision making process.

The Act shows the importance of protecting a person’s autonomy as it is made the first overarching principle of the Act;

‘A person must be assumed to have capacity unless it is established that he lacks capacity’

In addition, the MCA Code of Practice states in para 4.4 provides,

An assessment of a person’s capacity must be based on their ability to make a specific decision at the time it needs to be made, and not their ability to make decisions in general

Yet everyone now breaches this law by declaring people ‘incapable’.

So the first thing to be established is what decision,

Does it appear a person has lost the capacity to make?

And what is the evidence of this?

If a person has all his life, decided, what to eat, where to live, and who to see.

And is still doing this, then, he is not having difficulty making these decisions.

So why then, need his capacity be questioned, in respect to these decisions, as it is now, daily by Local Authorities, particularly, if he has a learning disability, or is autistic ?

The Act also states, there must be evidence of a difficulty making a decision, at the time the decision needs to be made ?

Again, Local Authorities, do not appear to need to explain,  why they have decided a decision ‘needs be made’,  at a particular time, other than to fund services  at 18, and/or, due to exaggerated/non existent safeguarding concerns.

Any presumption of incapacity, before a test, is illegal, and, ipso facto excludes, a person from the decision making process, and prevents the steps  legally needed to maximise capacity.

Without these the test is unfair, illegal..

And the empowering nature of the act subverted.

Its raison d’etra ,thwarted.

Merely because a particular decision is unwise, or other, than one, the assessor would have made, or makes care easier, does not make a person incapable of making it.

And the incapacity, must be directly linked/ connected  to an ‘impairment of mind’.

If a person, has already been making, the same decisions all his life, and, there is no new impairment, for example he is autistic, or learning disabled from birth , then, why would he suddenly, be unable to make these decisions ?

And, how could they be due to an impairment, he had had when he was making them .

If, indeed, autism can be classed as such an  ‘impairment’.

And, it must be remembered, that just because a person is unable, or unwilling, to make a decision,this does not mean, they are not capable of making it.

Hamlet was not incapable.

The reality is, that the mental health system is awash with people, who are assessed as ‘incapable’, for no other reason than they  are labelled with one of the 375 mental disorders now available.

And most do not even engage with their assessment, and their assessment is generally an illegal blanket ‘incapable’ of any decision assessment for life.

The Mental Capacity Act, can make anyone, a prisoner of the state.

cropped-big-brother-is-watching-1984_jpgThe Mental Capacity Act 2005 not only qualifies, as the most socially draconian Act in modern history but also created its own court.

Why?

To purportedly protect the rights of the vulnerable.

A surprisingly laudable reason for a government.

Particularly, with no media pressure,  scandals, petitions, or campaigns that  warranted any legislation, let alone such a monster of oppression.

Whilst now 8 years  on,  there is huge pressure and an urgent need to protect our vulnerable from a plethora of  scandals, Winterbourne, statistics that 3 learning disabled, die needlessly per day and concerned relatives, if not  excluded, resorting to spy cameras.

If this Act were about protection it is a catastrophic failure.

So, why was the cost and time of this Act, thought so necessary, it was pursued for years  and implemented subject to review, despite two years of House of Lords objections?

And why did its need ignore the fact that  the inherent High Court jurisdiction, Enduring  Powers of Attorneys, the doctrine of necessity and The Office of Public Guardian had already  adequately protected the vulnerable,  for centuries.

And still do except in the UK.

Far from protecting the vulnerable, the Act has served to encage them, and make them, far more vulnerable.

So what was, the purported reason for  the Act ?

Amazingly,  little.

A government concern, that due to the ‘unstructured’ nature of  protection, decisions vulnerable people could make for themselves were being  made by others.

And, if   a person became  incapable of making a decision  others should be prevented from making this decisions without the vulnerable’s, considerable involvement.

The fact that today,  such an implausible respect for an individual’s autonomy has through the subversive implementation of the Act resulted in the total removal of a vulnerable person’s autonomy, sadly, reveals the government’s real agenda.

The very concerns, the government sought to remedy, are now given flesh, by the Act.

It  is being used, not only, not to involve vulnerable in decisions  concerning them, but it also, allows LAs/ care providers, to make all the vulnerable’s decisions for life.

Incapacity, is needed for the jurisdiction of the Court of Protection.

It is the gateway, to an individual’s  every future decision being made by the state.

Allowing a vulnerable adult, unlucky enough to need  ‘support’to be made a captive consumer of any state care, without reprieve, escape or complaint.

A person’s worst nightmare.

Every decision made for you, by strangers, whose overriding interest is profit .

And, the MCA has been drafted, to allow potentially, anyone’s, decisions to be made for them.

As it provides any state agent, care/support worker, social worker, nurse, GP, psychologist, counsellor, alzeimer friend, even neighbour, can assess whether an individual is ‘capable’.

If they appear to them to be mentally impaired as a result of a non exhaustive, all embracing list- learning disability, mental health problem, brain injury, dementia, alcohol or drug misuse, effects of treatment/medication or in fact any other illness or disability.

Not only is the list of ‘assessors’ effectively anyone, the reasons for  ‘incapacity’ is limitless.

Already, psychiatry/mental health is farcically extensive the US having created  375 mental disorders, diagnosed on a symptoms based subjective basis.

How vague, and subjective are these extensive impairments ‘learning disability’, ‘any other illness’ and the ‘side effects of medication’ ?

The Act  has been drafted to allow anyone, who comes into contact with a member of the public,  to assess them as incapable of making decisions.

Beyond terrifying, and amazing is the  power, it gives the state and their informers.

The ability to remove anyone’s autonomy by stealth and deem them a non person.

See latest rulings from Mr Justice Charles on Deprivation of Liberty Orders

http://www.lawsociety.org.uk/news/press-releases/ruling-highlights-rights-of-vulnerable-people-in-deprivation-of-liberty-hearings/

Worse than  Orwell’s ‘1984’ monitors.

The state ‘us’ is given the right to assess the ‘them’; without the ‘them’ even knowing,  and the ‘them’ are not even given the right to challenge the assessment.

And the courts, then remove all a person’s decision making rights, by illegal, blanket, general assessments, in a secret court.

The Act is not  protecting our ‘vulnerables’ rights but  removing them.

For NHS/LA private profit.

And, as the state decides, who is ‘vulnerable’  and it could be you.

 

Rip off social care.. the plight of the disabled family.

ghost

Friday 6th March

All is very bizarre,

All is very dire.

We, as always, are kept in the dark, until, whatever happens, happens.

As you can imagine, in between my waves of nausea, and caring for poor Issy, I have been kept, very busy, coping with officialdom.

I await the arrival of the other lady from the agency, who attends the social services’ weekly ‘surveillances’.

We had our 5 th ‘surveillance’, with our 2 social workers, two days ago, the sixth, next week, is the psychologist’s visit, to declare Issy a vegetable, and, observe her emotional state, and, no doubt, ours.

We are not told, nor dare ask, not that any definitive answer would be given, how long the ‘surveillances’ go on for.

It is now 11. 00 am, the lady was due at 10. 00am, so I assume, she is not coming.

She didn’t.

We have no timetable of hours.

Angel Eyes , has supported for three weeks, from 10-4 Monday, 10-3 Thursday.

We received an invoice, from the agency, for £710.50 for 50.75 hours support for February, at £14 per hour, yet Angel Eyes, is paid £8 per hour, and, no traveling expenses.

And, has to put her time sheets  online.

She also, appears, to organise support, and, inform us.

Personal ( direct payment ?) services, the basis, I assumed, this agency was paid on, allows £7.50 per hour, and a £30 per month administrative fee.

A little over half, of the agency invoice.

Adult services wouldn’t pay the £710.50, as the agency, is not approved by them

But, as the LA pay, are the source of all future lucrative, reliable business,and the piper that calls the tune.

The agency boss, assured us, he could have, our ‘pot of money’, held by the previous education package, (‘fist lady’ and co, no show), transferred over to his company.

Remember, the only alternative support, we were offered, was  ’ Fist Lady’, and,  new friend……

So, what can we do to be reimbursed this, and future support?

Sue the Local Authority, if we can find  the forms, pay the court fee, cope with the hassle, -service, posting etc, and  pay for the extra support, to attend court, and risk the LA’s legal costs, if we lose, which would be more, than the £720.

Courts are now profit making, and provide no legal advice, just an expensive, time consuming answering machine  service.

We have already paid out, £900 on officialdom.

No, we have no law, as, it cannot be enforced.

And complaints mechanisms are shut down on a court application.

So are living in the wild  west.

Just a reminder; the new agency support, is in lieu of Issy’s education, social care, respite, and NHS care.

Another reminder; we have had no overnight respite, other than, the three nights blogged in July 2014, and 3 evenings, in over 2 years.

The adult services lady told us, the insisted on, by social services agency  support, of 2 workers in the kitchen for  7 months, was to ‘interact’ with Isabel, as she fleetingly appeared in the kitchen for juice and food, and not to help me with cleaning  or even Issy’s personal care.

No one  knows, the role ‘support’ has, is it education, personal care, respite ?

Nor indeed, if they will turn up, or, leave, never, to be seen again.

Nor, more crucially,what the lies/spin, they report back to social services.

Do note, under the Chronically Sick and Disabled Act 1981, up to £82,000, can be claimed, legally, just for Isabel’s social care, and,a similar amount, from the NHS.

If Issy is in residential state care  over £4,000 will be paid to her private provider.

Hence, the push for Issy’s independent, away from family living, so this statutory entitlement,  in addition to  her benefits- housing, mobility, DLA, ILF, CA,can be claimed.

Clearly venture capitalists, have realised the autistic are a gold mine.

But has, or will, all this public money, help Issy ?

It hasn’t so far.

In fact it has caused her problems.

She is  still suffering, reignited post traumatic disorder, from her abuse in NAS care, exacerbated, by the fear of leaving her home, and, not returning, created by her first ‘education’ package, who informed her, she could not live with Mummy and Daddy.

As l write , Issy is echoing the words of the same NAS key worker, in the worker’s actual voice, replete with Yorkshire vowels, and, sneer.

Issy must have said to her, ‘Where is Mummy and Daddy?’,

the worker repeats this question, as Issy echoes, in the workers mocking voice,

‘Where’s Mummy and Daddy’, followed by a bellow of,

They’re not interested’.

What has been done about this abuse?

Nothing, as denied and usefully to justify antipsychotic medication, interpreted, as Issy  hearing voices.

Her 48 bruises in NAS residential school we declared and recorded for all time as self harm.

A National Autistic Society  claiming  £ 60,000 per annum, up until 24/5/2013, from the NHS, according to an NHS letter to me, despite the fact Isabel returned home, on the 29/1/2013, where she has never received any NHS care.

In addition, a further £60,000, for her education, as education and NHS paid 2/3rds of the £177,000,  ‘tax free’ per annum, paid to the National Autistic Society School as a charity.

There was no deduction the third of the year Issy was with us.

We paid NAS pocket money, and towards clothes.

All paid until May 2013, three and a half months, after Isabel returned home on 29 the January .

So much for cost cutting, value for money, and helping the disabled, and their family.

During these years, we were paid £20 per week Disability Living Allowance.

And still only this amount, for 4 months after Isabel had returned to live at home.

Isabel now receives £125 ( reduced to£105) DLA, and I receive £77 carer’s allowance ( reduced to £62.50p), no free nappies, no beds, no nothing….. Just the privilege now, of paying, through the nose,  for agency care.

Here are the statistics of number of hours of unpaid care by family.http://www.carersuk.org/news-and-campaigns/press-releases/facts-and-figures

Why can family carers not even claim any of their time caring, and worse still any  LA support is deducted from the disabled’s DLA.

Who’d  want to be a disabled family in this country, think of our plight, when ‘Pudsey Bear’ and ‘Children in Need’ come begging.

The door bell rings.

My heart leaps.

It’s difficult not to be paranoid, when you are secretly and silently surrounded.

But it’s just the nice post lady, a kind, familiar face.

And my fifth letter, 4 from the NHS hospital, and 1 personal one from the GP, about my failure to attend a Diabetic Eye Screening Appointment.

I have not got diabetes; even my 2 GP results 2 years ago were insufficiently raised.

I have no symptoms, but what does that matter.

Truth is irrelevant.

The box has been ticked.

Issy  in nursery